Form i NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31594
Docket No. MW-30811
96-3-92-3-611
The Third Division consisted
of
the regular members and in addition Referee
Dana E. Eischen when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Atlanta and
( West Point Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee
of
the
Brotherhood that:
(1) The Agreement was violated when, beginning July 16, 1990 and
continuing, the Carrier allowed or otherwise permitted a contractor
(Elder Construction Company) to perform maintenance work
of
grading on Carrier's right
of
way in the vicinity
of
Mile Post YYG
83.0 near Greensboro, Georgia on the Georgia Subdivision
of
the
Atlanta Division (System File 90-96(GA)/12(90-1069) AWP].
(2) The Carrier also violated Rule 2, Section 1 when it failed to confer
with the General Chairman and reach an understanding prior to
contracting out the work in question.
(3) As a consequence
of
the violations referred to in Parts (1) and/or (2)
above, Roadway Machine Subdepartment employes Messrs. C. S.
Fowler, D. P. Bohler, W. H. Cameron, R. B. Terrell, F. C. Sears,
Jr., V. W. Jones and F. E. Scott shall each be allowed pay at their
respective straight time rates and overtime rates for an equal
proportionate share
of
the total number
of
man-hours expended by
the contractor's forces performing the subject work."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 31594
Page 2 Docket No. MW-30811
96-3-92-3-611
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning
of
the Railway Labor Act, as
approved June 21, 1934.
This Division
of
the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute waived right
of
appearance at hearing thereon.
On March 16, 1990, 13 of Carrier's coal cars derailed at MPYYG 87.0 on the
Georgia Subdivision. The area alongside Carrier property, in which the derailment
occurred, is privately owned pasture land. Carrier dragged the wrecked coal hoppers
from the site, and placed them on the pasture land to be cut up.
After the cars were cut up and hauled away, an outside contractor (Elder & Sons)
was called in and worked for 16 days cleaning up the derailment site. Carrier's use
of
the outside contractor to perform work which the Organization alleges it has historically
performed, constitutes the gravamen
of
this dispute. Specifically, the contractor hauled
mud and other debris and placed it back on CSX property.
The Organization submitted a claim asserting that:
"Beginning on Monday 16, 1990 and continuing, five employees of the
above referenced Contractor started operating various earth moving
equipment including, but not limited to, four bulldozers, one pan and two
dump trucks to perform maintenance work of rebuilding road bed and
general grading work along Carrier's right-of-way on the Georgia
Subdivision of the Atlanta Division. These five Contractor employees are
working ten hours each day, five days each week, Monday through Friday.
Thus far, up to and including Friday, August 31, 1990, they expanded a
total of 1750 man-hours in the performance of the subject maintenance
work. The Carrier made no attempt to notify/confer with the General
Chairman regarding its plan to use outside forces for the grading work in
question.
The Carrier in this instant case is in violation of, but not restricted to
Rules 1, 2, 3, 4, 5 sections 1 and 2, 6, 7 section 1, 8, 27 and 28 of the
effective Agreement."
Form 1 Award No. 31594
Page 3 Docket No. MW-30811
96-3-92-3-611
Carrier replied to the claim maintaining that the Organization's information was
"inaccurate" and that the work which the contractor performed was "very sporadic"
and completed by August 9, 1990. The Carrier further maintained that:
"As previously advised, there was nowhere near 1,750 manhours
consumed in the performance of this work; in fact, only 66 hours could be
reasonablely argued as having anything whatsoever to do with Carrier's
operation, as the remaining 342.5 hours took place on private property!
Furthermore, Claimants were all on duty and under pay at the time the
work was performed, and would be entitled to no additional compensation
in any event."
Further correspondence between the Parties did not bring about resolution to this issue.
The dispute is now before the Board for adjudication.
Rule 2 of the Agreement between the Parties states, in pertinent part:
"This Agreement requires that all maintenance work in the Maintenance
of Way and Structures Department is to be performed by employees
subject to this Agreement, .... Except it is recognized that, in specific
instances, certain work that is to be performed requires special skills not
possessed by the employees and the use of special equipment not owned or
available to the Carrier ... In such instances, the General SuperintendentChief Engineer and the General Chairman will confer and reach an
understanding setting forth the conditions under which this work will be
performed."
At the outset, it is not disputed that Carrier failed to "meet and confer" with the
General Chairman prior to entering into an agreement with the contractor. Therefore,
Carrier clearly violated that portion of Rule 2 of the Agreement.
With regard to the work which the contractor performed on the private pasture
land in question, Carrier argued that it did not possess the proper equipment to perform
the necessary clean-up work. The Organization did not present any evidence which
would lead us to question Carrier's assertion, therefore, that portion of the 1750 hours,
some 342.5 hours, will not be considered further.
Form 1 Award No. 31594
Page 4 Docket No. MW-30811
96-3-92-3-611
However, we found the Organization's position persuasive with respect to the
work which was performed along the drainage ditch, on Carrier's property. At the very
least, Carrier should have conferred with the General Chairman prior to contracting
out that portion of the work.
In that connection, the fact that Claimants were "fully employed" during the time
that the drainage ditch repair was performed does not negate liability for the proven
violation of Rule 2. Accordingly, Carrier is directed to compensate Claimants for 66 of
the hours in dispute.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 29th day of August 1996.